Sethi v Cho

Background, primary decision, procedural matters in appeal

1. The proceedings concern an apartment in St Leonards, an inner north shore suburb in Sydney, NSW. The appellant was the tenant and the respondent to the appeal was the landlord under a written residential tenancy agreement dated August 2016 at $1,500 per fortnight beginning 21 August 2016 with a fixed term ending 20 February 2017. The tenancy had lasted almost seven years in total.
2. In RT 22/56559 filed 22 December 2022 the landlord sought termination of the tenancy agreement and an order for possession pursuant to a 90-day "no-grounds" termination notice under s 85 of the Residential Tenancies Act 2010 (NSW) (RTA) that had been served on 13 September 2022. In RT 23/03109 filed 23 January 2023 the tenant sought to have the notice set aside as a retaliatory eviction under RTA s 115.
3. On 1 March 2023 the primary decision gave reasons for ordering immediate termination of the tenancy with the order for possession suspended to 29 March 2023. The no-grounds termination notice was found not to be retaliatory. The Tribunal also found that, even if the notice had been retaliatory, the Tribunal's discretion under RTA s 115 should be exercised against setting it aside and in favour of terminating the tenancy.
4. The Senior Member who gave the primary decision provided the following written reasons (summarised by us) for his decision: 1. The tenant had sought to issue seven summonses for production: to the strata manager, the NSW Police, a security firm, and the owners corporation, among others. The Tribunal confirmed the Deputy Divisional Registrar's decision to refuse the tenant's request to issue the summonses on the basis that what was sought to be produced was "not clearly relevant to an issue in dispute". The Deputy Divisional Registrar's decision was found to be correct because the tenant's case on retaliatory eviction depended on his making and pursuing allegations of illegal activity in early September 2022, almost immediately after which the no-grounds notice issued, and did not require the tenant to establish the truth of the allegations, which could be pursued even if the tenancy was terminated and was hence an impermissible collateral purpose: Primary Reasons (PR) [27]-[28]. 2. A narrative chronology produced at the hearing for the first time by the tenant was rejected from evidence since it would be procedurally unfair to the landlord to allow reliance on the new factual material in it: PR [4]. 3. The tenant should be granted a three months' extension of time to make his retaliatory eviction application. Although there was no explanation for the delay, there was no unpaid rent (arrears notices which had been issued were the result of a timing issue), the landlord pointed to no prejudice, and it was a long tenancy sought to be preserved: PR [29]-[30]. 4. None of the three reasons listed in s 115(2) as triggering motives for an eviction to be found to be retaliatory had been established: the tenant had not proposed to apply, or applied, for a Tribunal order; the tenant had not proposed to take or taken other action to enforce legal rights; and there was no Tribunal order in force between the parties: PR [32]. 5. Additionally, there was no evidence that the landlord or the managing agent for the landlord was aware of the tenant's allegations before the no-grounds notice was issued. The evidence, even if it had included the chronology, showed no communications with the landlord or his managing agent: PR [33]-[34]. 6. Even if the no-grounds notice was retaliatory and the tenant's concerns were justified, it was clearly preferable for the tenant to move and pursue his allegations from a less risky location. If the notice was retaliatory but the tenant's concerns were not justified, pursuit of those allegations with time and/or costs to the owners corporation and others may be expected to impact on the landlord. Accordingly, the discretion in RTA s 115 should be exercised not to set the notice aside: PR [35]-[38]. 7. If the no-grounds notice was not set aside then there was no defence to the notice as the basis for a termination order: PR [23]-[24]. 8. Four weeks to vacate was granted; the landlord had sought two weeks, the tenant a year: PR [40].
5. On 24 March 2023 a stay of the primary orders was granted until the final substantive decision on appeal, conditional on payment of rent continuing, which occurred.
6. On 3 April 2023 the tenant requested written reasons for the conditional grant of a stay and also for the grant of leave for legal representation (which leave was not exercised by the landlord) and for the grant of leave for the landlord to be represented by his managing agent as an alternative. On 14 April 2023 written reasons for an extension of time to provide appeal preparation documents were provided and the tenant was advised that the balance of reasons requested were being prepared.
7. Before and at the appeal hearing, which took place on 9 May 2023, the tenant sought an adjournment on the basis that he didn't have all the requested reasons. We rejected the application for an adjournment since the reasons for procedural decisions in the appeal process were not relevant to the argument on the substantive appeal under the principles governing the scope and nature of internal appeals set out below.
8. The tenant then said that he was not ready to argue the appeal since he had expected an adjournment. It was pointed out to him that as late as 5 May 2023 he had been told by the Appeals Registry that he must be ready to run the appeal if an adjournment was refused.
9. The appeal hearing then proceeded and both parties made submissions.

Grounds of appeal

1. The notice of appeal was filed, in time, on 10 March 2023.
2. The grounds for the appellant's challenge were, in summary, as follows, as discerned from the notice of appeal (which had apparently been prepared by the appellant without legal assistance) in conjunction with the tenant's oral submissions at final hearing. This was in accordance with the approach outlined in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, at [12]: 1. The primary member erred in law by not providing procedural fairness, including by not allowing the tenant to issue the summonses and by not allowing the tenant to rely on the chronology as evidence. By reason of this, the tenant could not adequately present his case. 2. The primary member erred in law by giving inadequate reasons and failing to take into account mandatory considerations. 3. The primary member erred in fact by upholding the objection to the tenant's summonses and by the exercise of discretion against setting aside the no-grounds notice. 4. The primary member erred in fact by not undertaking proper and balanced consideration of the tenant's security allegations in early September 2023 in communications with the owners corporation.

Scope and nature of internal appeals

1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013 (NCAT Act).
2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons where they are required; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
3. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited by cl 12(1) of Sch 4 to the NCAT Act. In such cases, the Appeal Panel must first be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
4. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) in Sch 4 may have been suffered where: " … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance."
5. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
6. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: "(a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."

Consideration and conclusion

1. The tenant first pointed to a typographical error, in respect of the date of termination shown on the notice, in [7] of the primary reasons (PR) as invalidating the Tribunal's finding concerning the notice. It was pointed out that the notice itself correctly referred to 21 December 2022, as did PR [25].
2. The tenant submitted that the only possible explanation for the timing of the issue of the no-grounds notice was because of the tenant's complaints about security and that he needed the summonsed documents, from the owners corporation at the least, to show that the landlord was made aware of his communications via the managing agent of the landlord, which was relevant to the finding in PR [32] concerning the landlord's absence of knowledge.
3. The tenant said that he was convinced that the no-grounds notice was invalid so had not taken proceedings in the Tribunal before the retaliatory eviction proceedings or put on a witness statement. He had not provided copies of the summonses or other documents from the primary proceedings to the Appeal Panel because he was waiting for the transcript of reasons from the procedural hearing in the Appeal Panel on 24 March 2023 (when the stay was granted and leave was given for the parties to be represented).
4. The tenant proffered to us at the hearing emails and text messages that were clearly available to be provided to the primary member but were not. We refused leave to allow the tenant to rely upon them in support of his appeal.
5. The tenant said that the Tribunal, including the Appeal Panel, should conduct its own fact-finding in relation to the matters for consideration concerning the security of premises in RTA s 191(2)(c) and (3). There were no relevant proceedings before us to raise these provisions or to consider the scope of any fact-finding beyond the evidence put forward by the parties.
6. The tenant's written material was consistent with the above submissions.
7. The landlord supported the primary findings and orders.
8. The tenant also sought a stay on the issue of any further termination notice until his allegations about security were resolved so long as he continued to pay rent. He also sought a transfer of the proceedings to the Supreme Court so his allegations could be investigated, and sought compensation from the managing agent. There was no basis of claim advanced with evidence and argument in the original proceedings or on this appeal in support of these matters and we have not considered them further.
9. We consider that the reasons given for a refusal to set aside the no-grounds notice as an exercise of discretion in PR [35]-[38], if the requirements of RTA s 115 were otherwise made out, were susceptible to challenge as involving an error with respect to a question of law involving the taking into account of irrelevant considerations or as not grounded in evidence. We do not need to determine that challenge because the premise for the exercise of discretion not to set aside the notice was not reached in the primary decision.
10. We also consider that the second and additional reason given by the primary member for finding that RTA s 115 did not apply, in PR [33]-[34] (see [5(5)] above), also was susceptible to challenge, as was the decision in PR [27]-[28] to confirm the rejection of the request to issue at least the summonses which sought communications (if any existed) concerning the security allegations between the strata manager and/or the owners corporation and/or the police or other actors on the one hand and the landlord or his managing agent on the other hand. Again, we do not need to determine that challenge because these were additional bases for the finding of no retaliatory eviction.
11. The primary reason for the finding of no retaliatory eviction was not challengeable on the evidence before the primary member, being the absence of any of the three bases in RTA s 115(2) for triggering a retaliatory eviction. The finding to this effect in PR [32] was not the subject of substantive challenge and on the material placed before us objectively could not have been. The reasons that the tenant gave for not engaging with these triggers were not relevant.
12. Once the retaliatory eviction challenge was not made out, it followed that the termination and possession orders should be made as stated in PR [27]-[28] since there was no other basis put forward to challenge the no-grounds notice.
13. No ground for grant of leave to appeal was made out, nor any error of law.
14. It follows that leave to appeal must be refused and the appeal must be dismissed, except to vary the suspension of possession period in primary order 3 to give the tenant a reasonable time to vacate, and to provide for an occupation fee until the tenant gives up possession. The primary orders suspended the order for possession for four weeks. Given the length of the tenancy and the continuous pattern of rent payment that we infer will translate into continued payment of an equivalent occupation fee until the tenant vacates, we consider that the period of suspension should be extended for a similar period after the date of publication of these orders. We shall make these ancillary variations of the primary orders, which are necessary by reason of passage of time and the stay pending appeal.

Orders 1. We make the following orders: 2. Leave to appeal is refused. 3. The appeal is dismissed except for varying the date in order 3 made on 1 March 2023 to the date which is four weeks after the publication of these orders and adding the following orders: 4. From the date of final orders in appeal 2023/00085892 until vacant possession is given, Akhil Sethi shall pay to Joe Cho an occupation fee at a rate per day being one-fourteenth of the fortnightly rental at the date of termination. 5. The proceedings may be re-listed before the Tribunal in the Consumer and Commercial Division at any time within 90 days after the date of final orders in appeal 2023/00085892 for orders for calculation and payment of the occupation fee. 6. Note that the stay granted on 24 March 2023 is lifted by virtue of these orders on the date of these orders. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 04 August 2023 - Administrative errors amended in paragraphs [16] & [32] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 August 2023